Abstract

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Before long, the fragmented, uncoordinated, and geographically dispersed paper records in which our medical information is currently recorded will be replaced by integrated, longitudinal, networked electronic health records (“EHRs”). Though nominally confidential, the information in EHRs, like other information collected about individuals in cyberspace, is as vulnerable as it is valuable. Health law, privacy, and intellectual property scholars have all suggested that the river of information created by EHRs and other data systems present a problem of “control,” and many of these scholars have proposed that “property” might provide the control individuals want and need. These arguments for control rights in personal information test contemporary understandings of what property is and reveal fault lines in modern property theory.

If property rights exist at all in dephysicalized, digitalized information, those rights are unlikely to be consolidated in a single person, to operate in rem, to grant owners significant powers to exclude, or to be standardized - all qualities that, in the eyes of some, are required of true “property” interests. Moreover, it is not clear that the rhetoric of property properly addresses the values at play with respect to medical and personal information, where the asset in question is some aspect of our very selves. Finally, if there is “property” in information, it may be a very unappealing kind of property - a claim derived from envy of the value that others have found in what we had ignored or thought worthless. The question of how power and control over information will be shared between individuals and others involves hard public policy choices. But because property theory is itself deeply divided over the extent to which property provides control, “property” itself cannot determine how these choices should be made.